Do Contract Rights Always Have the “Extra Element” To Save Them From Preemption?
So what about an anti-reverse engineering provision in a shrinkwrap or browsewrap license? Does such a provision have the “extra element”? The Bowers court, relying on the Seventh Circuit’s 1996 decision in ProCD, Inc. v. Zeidenberg, held that it does. Unlike the general rights “against the world” that the copyright law gives every creator, the court reasoned, contract rights require “generally affect only their parties” and require the “extra element” of the parties’ mutual assent and consideration (the law’s term for something of value exchanged). Thus, according to the court’s reasoning, anti-reverse engineering provisions in software licenses are not preempted by federal copyright law. Indeed, more broadly, no contract right will ever be pre-empted, for every contract right has an extra element: the contract. The Problem With A Rule That Contract Rights Are Never Pre-empted When the situation is viewed this way, suddenly the court’s idea that copyright law gives general rights, and
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